Untitled - International Commission of Jurists

As of 31 December 2000, according to the Government, the DIU had conducted
criminal investigations into 1,175 of these cases, about which the Missing Persons
Unit (MPU) of the Attorney General’s Department, which was established to initiate
prosecutions into these disappearances, had received information from the DIU. As at
31 December 2001, 262 of these cases had led to indictments in the High Court and
non-summary proceedings had commenced in 86 cases in the Magistrate’s Court.
These included cases against 597 security personnel, (ethnicity was not disclosed).
Some 423 cases had been discharged for want of evidence. The DIU had been advised
to cause further investigations into 323 cases. 364 The total number of “disappeared”
persons from the period 1988-90 was asserted to be approximately 27,200 persons. 365
These statistics are manifestly unsatisfactory as official submissions by the
Government of Sri Lanka to the UN treaty bodies. They do not yield a full picture of
the prosecutorial and overall legal process in regard to cases of such overriding
importance to Sri Lanka’s accountability record. For example, what is meant by the
term ’discharged for want of evidence’? For what number of years are the ‘pending’
cases languishing in Sri Lanka’s courts and what are the reasons for delays? Where
cases are categorised as being ‘investigated’, to what extent (if at all) does the MPU
maintain supervision over the police investigations? Should not case numbers be
included in this data, together with the minutes of the court orders where acquittals or
convictions have been handed down in order that the information may be cross -
checked and the transparency of such data, maintained?
At present, there is little likelihood of actually identifying the relevant court orders.
Though some orders of the High Courts are analysed below, it is not possible to state
with certainty that these prosecutions emanated from the findings of the
Disappearances Commissions, or whether they were stemmed from an independent
source.
Further, the data is not disaggregated in terms of its geographical location and thus,
there is no way of ascertaining which prosecutions emanate from the conflict-affected
areas of the North and East and which, from other areas of the country.
The low percentage of convictions in these cases is one irrefutable fact that is
evidenced from these statistics. This is a result of unsatisfactory investigations and
prosecutions. Clearly, the DIU, though functioning reasonably effectively during the
first few years of its existence, very quickly thereafter lapsed into a state of
ineffectiveness, reflecting the lack of political will in investigating offences that
involved senior politicians and police officers. 366 Those police officers who
investigated their superior officers in this regard too zealously were transferred out of
the DIU or penalised in some other way.
For its own part, the MPU appeared to exercise no supervision over the investigations,
but merely accepted notes of investigations sent to the Attorney General by the DIU
on face value. Thus, for example, where a case was noted as marked by an
364 ibid at para. 159.
365 ibid at para. 161. However, the unofficial number remains much higher, at a conservative estimate of
40,000 disappeared persons.
366 Interviews with former senior police officers, 21.06.2009.
103